Seeks communications between city manager, staff, city council and among council members
City staff provides communications not requested, only six over 16 months that were, fail to answer questions
“If they’re all city business-related, then they’re public records and the media and the public have the right to see them.” – Enterprise Publisher Michael Braa who says City’s response was “woefully inadequate.”
Mayor, one councilman say they don’t use email to communicate with city manager
By Allen D. Payton, Editor
LOS BANOS, CA — After Public Records Act requests to the City of Los Banos by the Los Banos Enterprise were not fulfilled within the time frame required by state law, the Enterprise filed a lawsuit last month to force the City to comply. The request was for all emails, phone records and text messages between City Manager Josh Pinheiro and any and all City employees. In addition, the Enterprise requested any and all of each councilmembers’ emails, phone records and text messages amongst each other Pinheiro, as well, between Feb. 1, 2023, and June 18, 2024, the date of the most recent request. See Complaint
However, as of the latest response by City Attorney William Vaughn on July 24th, out of 266 pages of emails provided to the Enterprise only six documents fulfill the request.
The Enterprise’s attorney, Michael Titus of the law firm Wild, Carter & Tipton sent the request by mail and email to City Clerk Lucy Mallonee and the City had 10 business days to respond. If they couldn’t fulfill the request within that time, they were required to notify the Enterprise, and could take an additional 14 business days to fulfill the request. See PRA request – Letter to City Clerk
However, Vaughn wrote in a letter dated June 28, 2024, and sent via email, “City staff members have located records responsive to your request” but didn’t provide any. Instead, he wrote, “We anticipate making responsive, non-exempt records available to you on or before July 15, 2024. If any responsive records can be made available at that time, we will do so. Also, if additional time is required for providing any responsive records, we will notify you. Nothing in this letter should be construed as a representation by the City that such record(s) (if they exist) are subject to public disclosure.” See City Attorney June 28th letter
While it could be argued that the 14 days only extended until Friday, July 12, Vaughn responded by letter again, the following Monday, July 15th but without any of the requested documents. He repeated the information from his first letter but with a new extension date beyond the legal requirements. Vaughn wrote, “City staff members are continuing to review records that may be responsive to your request. We anticipate making responsive, non-exempt records available to you on or before July 24, 2024. If any responsive records can be made available at that time, we will do so. Also, if additional time is required for providing any responsive records, we will notify you. Nothing in this letter should be construed as a representation by the City that such record(s) (if they exist) are subject to public disclosure.” See City Attorney July 15th letter
Documents Provided 34 Days Later Do Not Fulfill Request
Finally, on July 24, a total of 34 days after the most recent request was submitted, in violation of state law, Vaughn responded, and provided a link (see below) to documents showing 266 pages of communications among some city staff and council members, but six emails requested by the Enterprise.
Vaughn wrote in his July 24th letter, “City staff members have identified a number of records responsive to your request. We are providing the records in electronic format through the following link:
https://www.imanageshare.com/pd/8UknlkCIrXe
Please let us know if you have any problems accessing the documents through the above link. Also, the link will expire on August 14, 2024. Please download the documents prior to that date.”
Instead, they’re primarily communications between City Clerk and Human Resources Director Lucy Mallonee and council members, and other staff, and from Assistant City Clerk and Human Resources Analyst Sara Blevins to the council members, and a few from other city staff members and council members. Most of the documents are copies of meeting agendas and minutes, invitations to the City-County Relations Dinners and the League of California Cities annual conference, which, again, were not part of, nor fulfill, the request. Only five of the six emails that do fulfill the request were between Pinheiro and councilmembers, and only four were about serious matters affecting the public, including selecting the new police chief, sidewalks, a mobile home park and Hwy 165. (See documents labeled TITUS0000206, 207, 208, 229, 243 & 245 in link)
District 1 Councilman Ken Lambert sent or received the most emails, a total of 12, but nine were to other city staff members, not the city manager.
City Attorney Claims Privilege, Won’t Disclose all Communications, Will Provide More Docs on Aug. 14th
The city attorney claims in his letter the City is not required to provide certain communications and cited past court decisions. He wrote, “the City withheld records of certain predecisional communications have also been withheld on grounds of the deliberative process privilege. These are predecisional communication revealing the City’s decision-making process. Disclosure of the internal predecisional communications between the agency and its consultants would chill the flow of information.”
He also wrote stating but without requesting another extension, “City staff members are continuing to review records potentially responsive to your request. We anticipate making responsive, non-exempt records available to you on or before August 14, 2024” seeking more time to fulfill the request, nearly two months after it was made. See City Attorney July 24th letter
The same day the latest letter from the city attorney was received, the Enterprise’s lawsuit was filed by their attorney.
Timeframe Requirements Under State Law
The First Amendment Coalition is a nonpartisan and nonprofit organization in California which, according to its website, “protects and promotes a free press, freedom of expression and the people’s right to know.” About the California Public Records Act (PRA) and compliance by government agencies, Executive Director David Snyder shared, “Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available. Govt. Code § 7922.535(a).
In ‘unusual circumstances,’ the time to respond may be extended by up to 14 days. Govt. Code § 7922.535(b). The term “unusual circumstances” means “the following, but only to the extent reasonably necessary to the proper processing of the particular request:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.”
Govt. Code § 7922.535(c).
If an agency claims ‘unusual circumstances,’ it must provide ‘written notice … setting forth the reasons for the extension and the date on which a determination is expected to be dispatched.’ Govt. Code § 7922.535(b).”
Furthermore, the League of California Cities’ “The People’s Business A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT” it offers the following guideline: “To ensure compliance with the 10-day deadline, it is wise for local agencies to develop a system for identifying and tracking public records requests.”
Enterprise Publisher Explains Reason for Lawsuit
When asked about the PRA request and lawsuit Los Banos Enterprise Publisher Michael Braa said, “We have been trying to get information from the City of Los Banos for over a year and it’s been like pulling teeth. This is the last thing we wanted to do. But we felt there was no other option available to us.”
“When the deadline passed, they didn’t produce anything. We wrote a letter, which they also ignored and so we filed suit,” he continued. “On the day we filed, they provided a woefully inadequate response that was basically a bunch of internal emails. It contains 266 pages mostly of emails from City Clerk Lucy Mallonee or her assistant Sarah Blevins to councilmembers and City Manager Josh Pinheiro.”
“We’re not asking for anything other than what the law says we’re allowed to receive,” Braa added.
“We want to see the internal communications between the city manager and employees,” he stated. “We also want to see the emails and text messages among the council members and between them and the city manager.”
“If they’re all city business-related, then they’re public records and the media and the public have the right to see them,” Braa added.
Questions for City Staff Go Unanswered
The following questions about the matter were emailed Friday afternoon, August 9, 2024, to City Manager Pinheiro and City Clerk Mallonee, and on Monday, August 12, 2024, to City Attorney Vaughn. They were asked, “Why wasn’t the PRA request fulfilled within the timeframe required by law? Why did it take a lawsuit before you began to fulfill it? Is the City not used to receiving PRA requests? Who at City Hall has the responsibility for fulfilling PRA requests?”
Finally, they were asked, “Will you provide copies of additional communications you’re continuing to find, by next Wednesday, Aug. 14th as is stated in Mr. Vaughn’s most recent response letter to the Enterprise’s attorney, Michael Titus of Wild, Carter & Tipton, dated July 24, 2024?”
In addition, Vaughn was asked, “Why would you waste city staff’s time, our time and that of the Enterprise’s attorney sending completely unrelated documents that don’t fulfill the Enterprise’s PRA request? Where are all the emails among the council members, and between the city manager and the council members, regarding issues on each of the council meeting agendas and other city-related matters, as well as between the city manager and other staff members that do or don’t discuss agenda items? Are you claiming ‘deliberative process privilege’ on all of those emails and that the City is not required to and will not provide emails that might disclose or reveal ‘predecisional communications’ after the decisions on those matters have been made by the council in public?”
Finally, he was asked, “Are you also claiming ‘deliberative process privilege’ on all communications between the city manager and city staff members?”
But he did not respond by noon on Tuesday, August 13th.
Llanez, Jones Say They Don’t Use Email or Text, Instead Use Phone Calls to Communicate with City Manager
Mayor Paul Llanez and the four councilmembers were copied on the email and asked the following questions: “Is this how you want the city staff to provide transparency to the public? Is sending completely unrelated documents that don’t fulfill a Public Records Act the way you want your staff to respond, which is wasting the time of both the staff of the Enterprise and its attorney, and potentially taxpayer money should the Enterprise prevail in court and the City be required to pay their attorney’s fees?”
District 3 Councilman Brett Jones was the first to respond saying, “I can only speak for myself. There has been only one email communication between the city manager and myself and that was to notify us that Ray Reyna was selected to be the new police chief. This actually went out as a group email to the council members and mayor.”
The Enterprise has a copy of that email and is one of the six aforementioned communications provided by the city attorney. See Pinheiro email to Council re: Chief Reyna appointment
“When I have a question for the city manager or any councilmember or mayor, I pick up the phone and give them a call,” he continued. “It’s faster than sitting and typing out an email. Texting or emailing takes way too long to send simple information.”
“I’m busy working 70 plus hours a week,” shared Jones, who works as a real estate agent. “I make my calls while I’m driving from one appointment to another.”
“I don’t know how Josh communicates with staff,” he added.
Later he shared the city attorney has been inundated and responding to multiple PRA requests this year, from this and other news organizations, and individuals.
Llanez reiterated what Jones shared about communications with the city manager saying, “He doesn’t send me anything. We talk to each other on the phone. We probably talk about two or three times a week. I ask about what’s going on, for updates. I don’t have the time to email. I pick up the phone. I don’t like things getting misconstrued. I like to pick up the phone and talk to people.”
“Anyone who wants to see my emails, they can just ask, and I’ll show them. I don’t need subpoenas,” the mayor stated.
Asked about text messages Llanez said, “I don’t text anybody. The only text message I’ve sent to Josh is to ask him to call me.”
Asked who on city staff is responsible for fulfilling PRA requests, if it’s the city attorney, city clerk, city manager or his assistant, the mayor said, “Josh has no assistant. We don’t have staffing for any of that.”
No responses were received from the other councilmembers by noon. on Tuesday, Aug. 13th, either.
Asked if any notes taken by Pinheiro during phone calls with council members were included in the PRA request and lawsuit, Braa said it’s something that can be requested during discovery.
Please check back later for any updates to this report, perhaps after August 14th when Vaughn committed to respond again with additional documents.
